Domestic Violence as a Violation of Women's Human Rights: Toward a Theory of State Responsibility
During their lives 40-80% of women will be victims of domestic violence. These acts often go unreported, and police and courts are often unresponsive. This tacit acceptance of domestic violence is rooted in a gender dichotomy entrenched in social and legal systems throughout the world. It prevents women from enjoying their human rights and perpetuates the idea that they have subordinate status. Violence against women is a human rights issue, although the human rights movement has been silent about it. Examples of the problem abound.
In Brazil, men could kill their wives if they caught them committing adultery, and were acquitted or received reduced sentences based on the "honor" defense. This defense has since been outlawed, but Brazilian juries often equate a wife's adultery to aggression against her husband and acquit him based on self-defense or give him a reduced sentence based on the theory that his wife's adultery provoked a "violent emotion."
The practice in India requiring the bride's family to pay a dowry to the groom's also leads to violence against women. If the bride's family does not pay the groom, the groom's family may abuse or desert the bride. At its worst, this culminates in bride-burning--the wife is taken to the kitchen and set on fire by the husband or his family. The dowry system and brideburning have been outlawed, but due to loopholes in the law, a lack of popular support, incompetent police, and corrupt courts, over 90% of dowry related deaths go unpunished. Furthermore, domestic violence is not a cognizable offense in India.
Pakistan's Hudood laws make adultery, fornication, and rape punishable by death. The laws of evidence, however, require that four male, Muslim witnesses testify before a perpetrator may receive the maximum sentence for rape. Women, even the victim, are not allowed to testify. Since victims often cannot find the requisite four witnesses, rapists often go free and women are convicted of fornication.
The prevalence of domestic violence is in part due to a public/private gender dichotomy. The public sphere—the workplace, economy, legal system, and political structure--is considered a male domain and subject to government regulation. The private sphere—the home, family, and children--is considered the female sphere and off limits to the state. Because of state reluctance to interfere in the private sphere, violence in the home goes unchecked. The human rights movement has embraced this dichotomy, thereby reinforcing entrenched power structures and ignoring women's human rights.
In the U.S., women have brought successful cases against states and municipalities for failure to prosecute. Such failure violates the Equal Protection Clause of the Fourteenth Amendment. If a city or state provides police protection, it must do so for all citizens. To prove discrimination, the plaintiff must prove that the existence of a discriminatory policy. This model could be applied internationally. For example, Brazil's application of the "honor defense" to men but not women, India's failure to recognize domestic violence as a crime, and Pakistan's evidence requirements for rape charges and refusal to recognize statutory and marital rape as crimes would constitute equal protection violations if applied in the United States. They deny women protection from crimes committed against them by their men.
The equal protection model, however, is limited to remedial action and ducks the issue of government responsibility for violence against women. To stop domestic abuse, governments must take responsibility for enforcing human rights, including rights of women, to ensure that all people can freely exercise their rights, and to prevent, investigate, punish, and compensate victims for violations of women's human rights.
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